The State’s authority to institute disciplinary sanctions against civil servants because there is a civil service public law relationship between civil servants and the State is not exactly the same as the State’s power of criminal punishment against criminals for criminal violations.  With respect to the former, the Legislature enjoys more discretion in formulating the elements of violations and their legal effects resulting in decisions of sanction when compared with the latter.  Not in contravention to the Constitution, Articles 2 and 9 of the Public Functionaries Discipline Act are general provisions delineating how civil servants’ actions or inactions constitute laches of duties or other misdemeanors, and what corresponding disciplinary sanctions are associated.  Likewise, Articles 11 and 12 of the same Act stipulating disciplinary sanctions of dismissals from public service and from posts are enacted to authorize the Commission on Disciplinary Sanctions of Public Functionaries to render appropriate disciplinary sanctions in any given case following the standards set forth in Article 10, and are not in contravention to the Constitution.  However, the abovementioned law does not stipulate caps on the periods of dismissals from public service and from posts, and may affect the rights of civil servants.  As a consequence, the relevant authorities shall review and amend the said law to provide caps in order to be in conformity with the constitutional guarantee of protecting the rights of civil servants.

       The State is a public legal entity whose thoughts and actions are expressed or exercised through civil servants serving as the State’s branches and sub-branches.  The relationship between civil servants and the State is one of civil service public law.  The State owes civil servants the duty to ensure their livelihood and to protect their rights by way of paying salaries, retirement pensions, etc.; on the other hand, civil servants owe the State the duties of loyalty and performing civil service.  For the purposes of maintaining civil servants’ discipline, the State has the authority to institute disciplinary sanctions against civil servants when there are laches of duties or other misdemeanors.  The exercise of the authority to institute disciplinary sanctions is based upon the civil service’s public law relationship between civil servants and the State, and is not exactly the same as the State’s power of criminal punishment against criminals for criminal violations.  Besides, the degree of strictness of legal conformation when exercising the authority of disciplinary sanctions is not completely consistent with that of its criminal counterpart which requires nullum crimen sine lege, nulla poena sine lege and expresses the delineation of legal elements and effects of each crime.

       Article 1 of the Public Functionaries Discipline Act provides that civil servants are not subject to disciplinary sanctions unless under this law; such language is adopted to ensure that civil servants cannot be deprived of their rights and interests unless there is a legal proceeding.  Article 2 of the same Act prescribes that civil servants are subject to disciplinary sanctions when there are laches of duties or other misdemeanors; Article 9 sets forth kinds of disciplinary sanctions, including dismissals from public service, dismissals from posts, demotions, salary cuts, demerits recorded, and disciplinary warnings.  Nevertheless, Articles 2 and 9 are both general provisions delineating how civil servants’ actions or inactions associate with corresponding disciplinary sanctions; Articles 11 and 12 of the same Act also do not stipulate caps on the periods of dismissals from public service and from posts, but authorize the Commission on Disciplinary Sanctions of Public Functionaries to decide appropriate disciplinary sanctions in any given case. This is so because the degrees and categories of civil servants’ actions or inactions in violation of their civil service duties are often different, and may require various degrees of disciplinary sanctions according to individual cases’ disparities, and cannot expressly be delineated in advance by law.  Moreover, as stated above, the exercise of the authority of disciplinary sanctions is not completely consistent with that of its criminal counterpart which requires nullum crimen sine lege, nulla poena sine lege and expresses the delineation of legal elements and effects of each crime.  When the Public Functionaries Discipline Act was amended and made public on May 3, 1985, its Article 10 was amended taking into account Article 57 of the Criminal Code to require the Commission on the Disciplinary Sanctions of Functionaries to consider all circumstances when trying disciplinary sanction cases and pay special attention to parties’ motives, purposes, means, and the damages or effects caused and to decide appropriate disciplinary sanctions in accordance with the degrees of parties’ violations.  Articles 2, 9, 11 and 12 are not in contravention to the Constitution.  However, the abovementioned law does not stipulate caps on the periods of dismissals from public service and from posts, and may affect the rights of civil servants.  Therefore, the relevant authorities shall review and amend the said law to provide caps in order to be in conformity with the constitutional guarantee of protecting the rights of civil servants.

*Translated by Professor Spenser Y. Hor.